Congressional Quarterly: Government Lacks Plan for How to Deal With Terrorist Enemies

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Tim Starks and Seth Stern of Congressional Quarterly argue that after nearly a full decade into the war on terrorism the United States still lacks a legal framework for what is widely seen as the top national security threat of the modern era.

A simple-sounding question rippled through recent congressional hearings with top national security officials: What would you do with Osama bin Laden or other most-wanted terrorists if you captured them?

They couldn’t offer one simple answer.

“We would probably move them quickly into military jurisdiction at Bagram [Airfield] for questioning and then, eventually, move them probably to Guantánamo,” CIA Director Leon E. Panetta told the Senate Select Intelligence panel.

“That would probably be a matter of some interagency discussion as to what their ultimate disposition would be and whether they would be tried or not,” Director of National Intelligence James. R. Clapper Jr. told the same committee.

The most revealing replies came the next day at a Senate Armed Services hearing. “I think the honest answer to that question is, ‘We don’t know,’ ” Defense Secretary Robert M. Gates offered. “We don’t have an answer to that question,” agreed Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

The mishmash of answers from the administration laid bare a fundamental void: Nearly a full decade into the war on terrorism — and two years after President Obama vowed to close the Guantánamo prison — the United States still lacks a framework for what is widely seen as the top national security threat of the modern era.

The U.S. government has yet to figure out how to handle all the remaining detainees incarcerated in the U.S. military-run facility at Guantánamo Bay, Cuba. It hasn’t firmly decided where to incarcerate any new “high value” terrorists it catches or whether to hold them in civilian or military custody. It’s unclear who would interrogate them and which kind of court would be asked to hear their cases. In fact, there isn’t even agreement over a definition of who should be detained as a terrorist and who isn’t important or valuable enough to keep.

The root of the problem is the tension between the strategic aim of extracting valuable intelligence from suspected terrorists, and the legal constraints imposed by the Constitution and detainees’ access to U.S. courts via habeas corpus petitions.

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